Effective Date of E-Verify Rule Delayed Third Time

By SHRM Online staff Apr 17, 2009
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The federal government has pushed back, for the third time, the effective date of a new rule requiring federal contractors to use the federal government’s E-Verify electronic employment eligibility verification system. The latest effective date is June 30, 2009.

E-Verify is the U.S. Citizenship and Immigration Services’ system that organizations with federal contracts would be required to use to determine if their new hires and existing employees were authorized to work in the United States.

The rule, which would amend an existing regulation, originally was to take effect Jan. 15, 2009.

The Society for Human Resource Management (SHRM) challenged the legality of the rule in a lawsuit filed Dec. 23, 2008, noting that the system’s reliability has come into question and that use of the system was originally intended to be voluntary. A Government Accountability Office report to Congress reiterated long-standing criticisms of E-Verify, SHRM Online reported July 14, 2008.

SHRM is concerned, says Nancy Hammer, manager of SHRM’s regulatory and judicial affairs, “that the rule exceeds the government’s authority by mandating use of the E-Verify program, which was designed as a voluntary pilot project, and by mandating the re-verification of existing federal contract employees, currently not allowed.”

E-Verify would apply to federal contracts with a performance period of more than 120 days and a value of more than $100,000, according to an April 16, 2009. statement from Andrew B. Greenfield, a partner in Frogmen, Del Rey, Bernsen and Loewy, LLP, a Washington, D.C. law firm that writes periodically about legal issues for SHRM Online.

Service and construction subcontracts of a covered contract would be required to include the E-Verify clause if the subcontract’s value is more than $3,000, he noted.

Exemptions to the rule would include contracts for items that are available commercially “off the shelf” or that require only minor modifications, federal contracts for food and agricultural products shipped as bulk cargo and contracts for work performed outside the United States.

The U.S. Chamber of Commerce, Associated Builders and Contractors, HR Policy Association and the American Council on International Personnel joined SHRM in the lawsuit, which seeks to have the planned rule rescinded. Earlier, the U.S. Justice Department rescheduled the date from Jan. 15 to Feb. 20, 2009.

SHRM is hopeful, Hammer said, that “this additional delay of the rule allows more time for the government to re-evaluate its position and consider SHRM’s concerns.” In light of the delay in the rule’s effective date, she added, the parties have agreed to extend the stay of the lawsuit.

A notice delaying the rule until June 30, 2009 was published in the April 17, 2009 Federal Register.

Related article:

Rule Forces Federal Contractors To Use E-Verify, HR News, Nov. 14, 2008 ​

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